Jammu Kashmir Study Centre to challenge Article 35A in Supreme Court

New Delhi, (ivskdelhi). Jammu Kashmir Study Centre (JKSC), an independent think-tank, is getting ready to challenge Article 35A of the Indian Constitution in the Supreme Court. Article 35A was added as a new article to the Constitution of India through an executive order in 1954, without knowledge of the Parliament – a process that appears to be completely against the very spirit of the Constitution. This was announced during a press interaction at the Constitution Club today.

“Article 35A has resulted in gross human rights violations for last 60 years in the state of Jammu and Kashmir. It would be ideal if the Supreme Court takes suo motu cognizance of the issue. However, if that does not happen, we will approach the Supreme Court. Our team of legal experts is working to prepare a petition in the matter,” said Sh. Ashutosh Bhatnagar, secretary of JKSC.

JKSC has been focusing on research and interaction with a cross-section of communities in Jammu and Kashmir since last four years. In the course of study, JKSC team came across startling facts. They found that there are lakhs of people in J&K who are forced to live without certain basic rights since six Independence.

“When we delved deeper, we found that the root cause of these widespread human rights violations in J&K was a surreptitious amendment to the Constitution in 1954,” Ashutosh Bhatnagar said. “We have constituted a group of leading constitutional experts which is deeply studying this issue after which we will definitely approach the Supreme Court,” he said.

Senior advocate of Supreme Court and former Cabinet minister Jagdeep Dhankhar spoke to the media regarding the legal aspects. “This amendment was executed by way of a Presidential Order known as ‘Constitution (Application to Jammu and Kashmir) Order 1950’. Besides carrying out many modifications and changes, this presidential order ‘added’ a new “Article 35A” after Article 35 to the Constitution of India. Addition or deletion of an Article amounts to an amendment to the Constitution. And the Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368. But Article 35A was never presented before the Parliament of India !” he said.

This effectively means, in this case, the President bypassed the amending procedure as laid out in the Constitution on India in order to add the new Article 35A. This is against the very spirit of the Constitution, he said.

The 1954 order draws its power from Article 370. But, Article 370 does not state anywhere that it confers on the President executive powers so vast that he can amend the Constitution. Jagdeep Dhankhar made it clear that Article 370 does not give any special status to the state of Jammu and Kashmir. There is a lot of misconception on this issue, he said. In fact, the 1954 order can be termed a constitutional abuse of Article 370. It is Article 35A that has managed to create divisions and discrimination among the people of Jammu Kashmir state, wherein some people have all the rights and others are denied basic rights, he said.

Several communities have been deprived of certain fundamental and legal rights such right to buy land, right to education, right to dignity and right to equality. They continue to suffer even after 68 years of Independence.

Representatives from these communities – the women of J&K, Valmikis, Gorkhas and West Pak Refugees – presented their case before the media.

Rashmi Sharma from Jammu could not stop her tears as she related her plight. “We are unable to offer any security to our children,” she cried. Herself a “permanent resident” of the State of Jammu and Kashmir, she is married to Sanjeev Sharma, a non-resident. Ironically, Sanjeev does not have ‘permanent resident’ status because his mother, who was a ‘Permanent Resident’ of the State, married a non-permanent resident from Himachal Pradesh. So here is one family where two generation of women find themselves caught in this terrible state of statelessness because they married men who do not hold the “Permanent Resident Certificate”.

Children of women married to non-PRC holders are denied Permanent Resident Certificates. In effect, they cannot vote, study in professional institutions or compete for government jobs and scholarships. However, men who marry non-PRC holders can transfer their property to their offspring.

Mangat Ram from the Valmiki community related how their community, by law, is destined to work only as ‘Safai Karamcharis’ and nothing else. “Valmikis from Punjab were invited to the government of Jammu and Kashmir in 1957 to work as safai karamcharis with the assurance that we will be given all rights. But now even our fifth generation faces a bleak future. Our status in this state is that we can get employment only as safai karamcharis (sweepers). Our children cannot get admission to professional colleges in the state. No matter how educated our youth may be, they are eligible for no other employment except safai karamcharis,” Mangat Ram said, getting agitated as he spoke.

“The young generation is so frustrated that they have started talking of suicide…. My children curse me and my forefathers for settling down in this state. I appeal to you, as a representative of my entire community, to help us get the rights that every Indian citizen is entitled to,” Mangal Ram said.

While the Constitution of India abolishes untouchability and discrimination on the basis of caste, this community of several thousands, continues to be tied to the condition that they will work only as safai karamcharis. They too cannot vote in state elections and compete for government jobs or scholarships in the state. They are eternally trapped in a rigid, oppressive state supported and institutionalised caste system. Though they belong to the most marginalised of castes, they cannot procure caste certificates because they do not have Permanent Resident Certificates.

Those who migrated from West Pakistan to Jammu-Kashmir during 1947 Partition have been living there since last 68 years. But over six decades later, they are still identified as ‘refugees’ and denied their rights. Even the youth from this community is tagged as ‘refugee’ and denied rights and privileges that should have been immediately granted to those who were forced to migrate from Pakistan. Yashpal Bharti spoke for the community and related how their generations have suffered in the state. He showed newspaper clippings where state leaders have said categorically stated that West Pak refugees cannot be considered permanent resident of J&K. One clipping proved they cannot vote in state elections. “With no right to property, higher education, government service, we are forced to live a sub-human life,” he said.

Raghunandan Sharma spoke for the Gorkhas of the state who were a part of the Maharaja’s Army. Some of them got Permanent Resident Certificates earlier. However around sixty percent of their community members are still denied Permanent Resident Certificates. They face similar problems as all the other non-PRC holders.

“How can a law deprive lakhs of people of their basic rights? We demand that all these communities should be given access to every right that a citizen of India is entitled to. And since only the Supreme Court can grant them such relief, we will approach it suitably,” Ashutosh Bhatnagar said.

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Comments (1)

Shyamprasad Dubey

We support the case.every Indian must get right to live in any state of choice or should be allowed to buy property. The isolation of J&K should end.all migrated from there should respectfully settled there. We should have some strategy to acquire back the POK. We should start claiming it in all forums.we should raise the voice against the proposed gwadar port development and the highway china is passing through POK.

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